Extraterritorial Communications

There is no apparent legal impediment to the interception and use
or disclosure/divulgence by the Canadian government of
communications that both originate and end outside Canada,
regardless of the nationality of the parties doing the
communicating; it is exactly this type of ``foreign'' communication
that CSE is acknowledged to monitor. What is only occasionally
acknowledged, however, is that such communications do occasionally
involve Canadians and that the government is free to monitor them
even if Canadians are involved. A Canadian visiting relatives in
Brazil and making a phone call from Brasilia to Rio, for example,
would have no legal recourse if that call were to end up
intercepted by the SRS satellite monitoring station at Leitrim. (I
am not claiming here that such a call necessarily would be
intercepted; only that the SRS is capable of intercepting it and
that it would not be illegal for it to do so.) There are millions
of Canadians with close relatives in foreign countries who might
find themselves in a similar situation from time to time.

Crossborder Communications

The interception of telegrams and other data communications
(including, presumably, e-mail messages) that either originate or
end in Canada, but not both, is authorized by section 7 of the
Official Secrets Act, under which the Minister of Justice ``may, by
warrant under his own hand, require any person who owns or controls
any telegraphic cable or wire, or any apparatus for wireless
telegraphy, used for the sending or receipt of telegrams to or from
any place outside Canada, to produce to him, or to any person named
in the warrant, the originals and transcripts, either of all
telegrams, of telegrams of any specified class or description or of
telegrams sent from or addressed to any specified person or place,
sent to or received from any place outside Canada.''[1]

Since there is no time limit on such warrants, it is possible that
a single warrant, signed decades ago, still requires that all such
``telegrams'' be produced. Such warrants do not require judicial
authorization, there is no requirement for public reporting on
their existence, and no procedure exists for independent review of
their necessity or appropriateness. Canadians, who are the likely
participants in most of these communications, have no greater
protection from this sweeping provision than do people of any other
nationality.

Crossborder telephone communications probably (but not necessarily)
fall under the same legal regime as domestic communications.[2]

Domestic Communications

The interception of domestic ``private communications'' is illegal
under the Criminal Code except in those cases where the
interception has been legally authorized. For intelligence-gathering purposes,
a legal interception requires a warrant under
the Canadian Security Intelligence Service Act. Most such
interceptions are conducted by CSIS itself. The total number and
reach of such warrants is significantly limited by the requirement
that CSIS obtain judicial authorization for each warrant and by the
absence of any provision for all-inclusive warrants such as those
possible under the Official Secrets Act. The prospect of review by
the CSIS oversight body, the Security Intelligence Review Committee
(SIRC), also encourages discretion in the number and reach of CSIS
Act warrants. For these reasons, it would appear that although it
is possible to conduct a sizable number of targeted interceptions
under the CSIS Act, the Act can not be used to authorize the large-scale
interception of domestic private communications.

Non-encrypted radio-based telephone communications (RBTCs) are an
exception to the above rules. The most obvious example of an RBTC
is a telephone call via a cellular telephone, but it is conceivable
that a telephone call transmitted by a communications satellite or
even by a microwave repeater station also would qualify as an RBTC.
This perhaps unlikely possibility is significant because the great
majority of long-distance telephone calls made in Canada are
transmitted either by satellite or by microwave repeater at some
point. RBTCs are not considered ``private communications'' under
the Criminal Code. The interception of such communications is legal
as long as it is not done ``maliciously or for gain''. The use or
disclosure of the resulting intercepts, however, remains illegal,
except for certain purposes. These include use or disclosure: ``(a)
in the course of or for the purpose of giving evidence in any civil
or criminal proceedings or in any other proceedings in which the
person may be required to give evidence on oath; (b) in the course
of or for the purpose of any criminal investigation... (e) where
disclosure is made to a peace officer and is intended to be in the
interests of the administration of justice; or (f) where the
disclosure is made to the Director of the Canadian Security
Intelligence Service or to an employee of the Service for the
purpose of enabling the Service to perform its duties and functions
under section 12 of the Canadian Security Intelligence Service
Act.'' (Section 12 authorizes the collection of information
concerning ``activities that may on reasonable grounds be suspected
of constituting threats to the security of Canada''. The SIRC is
empowered to review such disclosures to CSIS, but only to determine
whether they meet the requirements of section 12.)

It would appear, therefore, that it would be legal for CSE or any
other government agency to intercept all cellular telephone calls,
and all other types of ``radio-based'' telephone calls, without a
warrant, as long as the subsequent use or disclosure of the
intercepts remains limited to the purposes authorized by the law.
Depending on what activities are interpreted as being part of
``interception'' and what are interpreted as ``use or disclosure'',
it might be legal for CSE to record and examine all such calls and
then ``use or disclose'' only the contents of those calls that meet
the legal requirements listed above.

An even greater loophole in the legal protection of domestic
communications (``private'' or otherwise) exists as a consequence
of CSE's membership in the UKUSA community. This membership gives
Canada extensive access to the SIGINT output of the other UKUSA
member agencies, including the US National Security Agency. It is,
of course, entirely legal under US law for the NSA to intercept
Canadian domestic communications. It is also - apparently -
entirely legal under Canadian law for CSE (and thus the Canadian
government) to receive such intercepts, or any information derived
therefrom, from the NSA, even if it would not have been legal for
the Canadian government to intercept those communications in the
first place. It appears that it would even be legal for the
Canadian government to request that NSA intercept specific Canadian
domestic communications. (Such an arrangement would enable the
government to monitor anyone of its choosing while stating,
truthfully, that no agency of the Canadian government was engaged
in such activities.) It is not likely that this kind of activity
currently is taking place on a large scale; NSA has more pressing
targets for its eavesdropping resources. It is important to
recognize, however, that there are no apparent legal impediments to
such an exchange of information.

As the above examination demonstrates, one way or another it would
appear to be possible for CSE to obtain intercepts of virtually any
form of Canadian electronic communication without violating
Canadian law. This suggests that the extent to which it does obtain
such intercepts will be governed more by the government-of-the-day's intentions
(as evidenced, for example, in what is known about
the CSE mandate) and by CSE and allied capabilities than it will be
by the legal regime pertaining to interceptions. With respect to
CSE's mandate, it has been noted already that CSE is restricted to
the collection of ``foreign intelligence'' (some of which does
involve Canadians). It is important to recognize, however, that
nothing prevents this mandate from being modified at any time,
without public knowledge, if a future government should decide to
use CSE's powers more systematically against Canadians. It is for
this reason that the members of the Special Committee on the Review
of the Canadian Security Intelligence Service Act and the Security
Offences Act, and others, have called for CSE's mandate and powers
to be established by statute, just as those of CSIS have been.[3]

Currently, the best assurance of the privacy of Canadian domestic
communications lies not in statutes and policies but in the
physical limitations of the monitoring capabilities of CSE/SRS and
their SIGINT allies. The primary target of CSE/SRS has always been
the Soviet Union, and the SRS intercept stations are sited
accordingly. The list of publicly-known
CSE/SRS facilities clearly indicates the priority placed on
Cold War military targets rather than domestic targets.

Aside from the CSE/SRS sites in the Ottawa area, none of these
facilities is located at the logical points for the systematic
interception of domestic Canadian communications. It is possible
that secret facilities exist for this purpose, but since the known
facilities appear to account for the entire complement of SRS
intercept operators it is not likely that any sizable secret
facility could be staffed by SRS personnel.

The number of CSE personnel potentially available for domestic
monitoring is also severely limited. There is good reason to
believe that CSE has been involved in monitoring the international
communications of the Quebec government. In 1994, former CSE
employee Mike Frost claimed that a ``French Problem'' section,
dedicated solely to ``the question of Quebec separation,'' was
operating at CSE.[4] The government's response - that CSE does not
violate Canadian law and does not ``target'' Canadians - was, in
effect, a non-denial of the charge.[5] Nevertheless, the number of
CSE personnel assigned to this and any other ``domestic''
operations is likely to be small. The great majority of CSE's
personnel are needed to process, analyze, and report on the
agency's foreign targets.

In any case, the volume of Canadian domestic communications is far
too great for any Canadian agency, or even the enormous NSA, to
monitor more than a tiny fraction of it, even if Canadian
communications were at the top of their priority list.

Nonetheless, some monitoring is feasible. Systematic interception of
Canadian communications traffic travelling by land-line probably would
require physical installations at nodal points in the communications
system, but interception of the large volume of domestic traffic that
travels by satellite could be done with a handful of satellite dishes at
almost any point in the western hemisphere. (Russia, for example, monitors
North American communications satellites from Lourdes, Cuba.) CSE probably
does not monitor Canadian communications satellites, but it is a
near-certainty that NSA does. It is also a near-certainty that CSE could
have access to NSA's intercepts if it decided to ask for them. The
crossborder traffic that is subject to section 7 of the Official Secrets
Act is even easier to acquire - the Minister of Justice can order the
telecommunications company carrying the traffic to provide copies directly
to any Canadian government agency the minister designates.

Personnel limitations remain a fundamental constraint on the
feasibility of large-scale monitoring operations, but even those
limits do not rule out all forms of large-scale domestic
monitoring. The initial sorting and analysis of data traffic such
as e-mail and electronic financial transactions, for example, can
now be done by computers using word- and topic-spotting technology;
this makes it feasible to monitor a vast amount of such traffic
with a comparatively small staff. Since data traffic plays an
increasingly important role in the day-to-day life of Canadians,
the possibility that it is, or could become, subject to systematic
monitoring by Canadian or foreign intelligence agencies should be
of concern to all Canadians.

Eventually it is likely that even voice traffic will become
vulnerable to computer monitoring techniques. Documents released
under the Access to Information Act in 1993 indicated that CSE
hoped to have a topic-spotting speech recognition system ready for
field testing by the end of March 1994; a fully-operational system
with the additional capability of identifying individuals by their
voices was scheduled to be in service by April 1995.[6] NSA is
reported to have similar technology in service already. (In fact,
crude systems reportedly have been in service for a decade or
more.)[7] Speech recognition technology is not yet capable of
efficient and reliable speaker-independent continuous-speech word
recognition and it may not reach that point until well after 1995.
But the technology continues to improve, and there is no reason to
doubt that at some point it will become feasible to use computers
to search systematically through voice communications just as they
search through data communications now.

Conclusions

There is no doubt that some communications involving Canadians are
intercepted, or otherwise obtained, by CSE/SRS, but there is little
reason to believe that such interceptions currently take place on
a large scale. Nevertheless, the potential for abuse of CSE's
eavesdropping powers is real. CSE's
mandate may rule out the systematic targeting of Canadians, but
it does not rule out the interception of all communications
involving Canadians. Furthermore, that mandate, which remains
secret, can be modified at any time without the public's knowledge.
At a time when CSE is actively in search of new targets, the nearly toothless legal
regime described above and the rapidly disappearing protection of
infeasibility do not constitute a solid foundation for the future
protection of the privacy of Canadians. The case for instituting
some form of independent oversight of CSE's
activities, and implementing other reforms, is strong.

Endnotes

[1] Official Secrets Act, Chapter O-5, Revised Statutes of
Canada, 1985. A recent book about CSE documents an example
of the use of this power by the RCMP and CSE to obtain copies of
the telex communications of the Soviet Embassy from the commercial
telecommunications carrier CN-CP. The authors incorrectly claim,
however, that this collection was done ``without the police having
to use any legal justification'' (Mike Frost and Michel Gratton,
Spyworld: Inside the Canadian and American Intelligence
Establishments, Doubleday Canada, 1994, pp. 90-91).

[2] There is a possibility that Section 7 also applies to
crossborder telephone communications. This section was modelled on,
and is essentially identical to, Section 4 of the British Official
Secrets Act 1920 (which has since been overtaken by the
Interception of Communications Act 1985). In 1880, a British court
ruled that ``any apparatus for transmitting messages by electric
signals is a telegraph''. As John Baxter has pointed out, the
effect of this definition ``was to remove the possibility of any
legal difference between the electromagnetic telegraph and the
telephone so that a telephone message and a telegram were one and
the same thing. When the word telegram was used in Section 4 of the
1920 Act it imported this absence of distinction and it does not
appear to have caused any anxiety that the use of this small word
was going to provide a statutory procedure for the tapping and
production of international telegrams, telex messages and the
transcripts of telephone calls. The Birkett Committee [established
in 1957 to review the authority of the British government to
intercept communications] touched upon the topic when it reported
the argument put before them that the Post Office regarded the
interception of telephone calls and telegrams as being on the same
footing.'' (John Baxter, State Security, Privacy and
Information, Harvester Wheatsheaf, 1990, pp. 186-8.)

[3] In Flux But Not In Crisis, report of the Special
Committee on the Review of the Canadian Security Intelligence
Service Act and the Security Offences Act, September 1990,
pp. 152-153.

[4] Spyworld, pp. 96-97 and 242. It should be noted
that the only examples of Quebec-related intercepts cited in the
book are cross-border communications involving the Quebec
government. The interception of such communications would seem to
indicate a willingness on the part of the Canadian government to
use CSE to collect intelligence related to Canadians and to
domestic Canadian political issues, but it does not imply
necessarily that CSE intercepts domestic communications for this
purpose. Frost states on p. 96 that ``I can't say I ever saw
anybody actually doing Quebec intercept from CSE or any raw copy
coming from there.'' Similar allegations regarding communications
between Quebec and France have been made in the past: see, e.g.,
Graham Fraser and Madeleine Drohan, ``Embassy officials ridicule
Canada-France spy story,'' Globe and Mail, 22 May
1992, p. A5.

[5] See, e.g., House of Commons Debates, 25 October
1994, pp. 7178-7179. As noted in the section on the legality of
monitoring, an assurance that CSE is not breaking the law is not an
assurance that communications involving Canadians are not being
intercepted. An assurance that CSE is ``not authorized to target
Canadians'' is equally unreassuring. CSE's targets are not normally
individuals but, rather, various categories of ``foreign''
intelligence, such as, in this example, the nature of discussions
between the governments of France and Quebec. An assurance that no
Canadian is targeted is not an assurance that no communications
involving Canadians will be deliberately intercepted. For a
description of NSA's use of the same semantic dodge, see James
Bamford, The Puzzle Palace, Penguin, 1983, pp. 387-388.

[6] See contract W2213-3-1903, Annex B (``Statement of Work For the
Research and Development of A Topic Spotting System,'' March 1993),
p. 11, released in severed form under the Access to Information
Act.

[7] ``Key words trigger U.S. security system,'' Ottawa
Citizen, 29 July 1994, p. A9. Spyworld, p. 152,
claims that CSE was given access to a highly effective NSA
wordspotting system, codenamed ``Oratory,'' as early as 1982. A
reliable, but dated, description of speech recognition efforts by
the UKUSA SIGINT agencies can be found in Patrick Fitzgerald and
Mark Leopold, Stranger on the Line: The Secret History of
Phone Tapping, The Bodley Head, 1987, pp. 104-111.